Select Committee on Religious Offences in England and Wales First Report

CHAPTER 8: Hate Crime

95. It follows from Chapter 6 that incitement
to commit a recognised crime is in itself an offence; but hatred
as such is not a crime, whether it is racial, religious or any
other form of hatred[109].
This was the genesis for Part III of the Public Order Act 1986,
to which have been added provisions in the Crime and Disorder
Act 1998 and the Anti-Terrorism etc Act 2001 that offences may
be aggravated by either racial or religious hatred. The proposal
in the Anti-Terrorism etc Bill to make incitement to religious
hatred an offence was dropped. The latter proceeded from threats
to the Muslim communities and their members, following the events
of 11th September 2001 in New York, and other acts
of terrorism elsewhere. There should be no difficulty for the
police or prosecution service in pursuing a criminal charge, where
an individual of any community, whether from an ethnic, religious
or any other minority, is subjected to threats, abuse or worse.
In an extreme case even incitement to murder, without a specific
target, can be subject to prosecution, as has just been demonstrated
by the conviction of Abdullah El-Faisal at the Central Criminal
Court in February 2003, under s.4 of the Offences against the
Person Act, 1861[110].
This provides that: " whosoever shall solicit, encourage,
persuade, or endeavour to persuade, or shall propose to any person,
to murder any other person shall be guilty of a misdemeanour,
and being convicted thereof shall be liable to imprisonment for
life ". The more usual case brought under this section
is against those who hire contract killers, but it is not confined
to this situation.

96. Article 20.2 of the International Covenant
on Civil and Political Rights (ICCPR) states that:

"Any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility
or violence shall be prohibited by law".

When the United Kingdom ratified the Convention in
1976 it made a reservation saying that this provision must be
taken to reflect no more than the law as it then stood. At that
time, the law on this subject consisted of the common law offence
of incitement and the Race Relations Act 1976. This provided a
civil remedy for discrimination and a criminal law element which
comprised the offences of using, displaying or distributing words
(or using behaviour) which is threatening, abusive or insulting
and is intended to or is likely to incite racial hatred. These
offences, originating in the Race Relations Act 1965, have passed,
via the 1976 Act, into ss. 18 and 19 of the Public Order Act 1986
(within Part III).

97. In 2001 the United Nations Human Rights Committee,
which is charged with examining the record of States parties which
have ratified the ICCPR as to their compliance with its terms,
recommended that this reservation should be withdrawn. They said
that they were concerned at reports that persons have been the
subject of attack and harassment on the basis of their religious
beliefs and that religion has been utilised to incite the commission
of criminal acts. They called on the UK "to extend criminal
legislation to cover offences motivated by religious hatred"
and to "take other steps to ensure that all persons are protected
from discrimination on account of their religious beliefs"[111].
This criticism overlooks the fact that incitement to commit a
criminal act is already an offence, and it is also met by the
religiously aggravated offences in the Anti-Terrorism etc Act.
The only conduct not covered now is pure incitement to religious
hatred, without calling for specific criminal acts.

98. In its General Policy Recommendation No.
7 on National Legislation to combat Racism and Racial Discrimination
(adopted by the Council of Europe on 13 December 2002), the European
Commission against Racism and Intolerance ("ECRI") dwelt
upon discrimination on, among other things, religious grounds.
It makes many recommendations to the States within the Council
of Europe. So far as concerns criminal law, it says the law should
penalise the following acts when committed intentionally:

(a) public incitement to violence, hatred or
discrimination;

(b) public insults and defamation ; or

(c) threats

against a person or a grouping of persons on the
grounds of their race, colour, language, religion, nationality
or ethnic origin. The criminal law is to include dissemination
of this criminal material by every sort of electronic means. Much
of the explanatory notes is concerned with racial and racist behaviour,
but in general the contents are consistent with the draft Council
Framework Decision on Racism and Xenophobia mentioned below (paragraph
107). In fact, again, almost all of the proposed offences are
already contained in English criminal law, but incitement to religious
hatred is not.

99. These conclusions by the bodies charged with
upholding both International and European Human Rights law can
be supplemented by some more detailed arguments. The UK took a
leading role in operations in Bosnia and Kosovo in order to protect
people who were being persecuted solely for their religious beliefs.
Those populations may provide an example of the connection, or
perhaps the disconnection, between race and religion which is
not always so apparent in England.

100. It is not true that a distinction between
race and religion will depend on characteristics which cannot
be changed as a matter of choice: it is of course true that people
cannot alter their racial origin, but there are communities in
the UK where it is inconceivable that anyone could change their
professed religion and continue to live within the community concerned.

101. Parliament, supported where they can by
the courts, has been sending out a message (see Chapter 9 below).
It is true that only 61 prosecutions for incitement to racial
hatred have been brought under Part III of the 1986 Act, of which
42 have resulted in convictions, but the question is whether the
numbers are significant. Some police forces may not have pursued
complaints as vigorously as they might in the past, and the CPS
may have been particularly cautious about approving charges in
view of the perceived encouragement given to racists by failed
prosecutions. Still, it may be that the mere existence of the
law has had its deterrent effect. Why, otherwise, would the BNP
and other extremists have taken so much trouble and advice to
ensure that their campaigns do not fall foul of the offences in
Part III? Therefore, if this area of criminal law were to be extended
to encompass incitement to religious, as well as racial, hatred,
and not many additional prosecutions ensued the effort would not
have failed: a few convictions would be good enough to convey
the clear message that such behaviour is no longer acceptable
in the community but has been held by a court to be criminal.
A condign sentence would have been imposed.

102. There is no need for a statutory definition
of religion in this context. This is no more difficult a jury
point than is "race" under existing law: the facts
should give guidance enough. There may be evidential problems
but they should not be insuperable, even though that is one of
the CPS' main criteria before they embark upon a prosecution[112].

103. Nor should there be any difficulty in finding
an accommodation between an offence of incitement to religious
hatred and freedom of expression: those who drafted the ICCPR
had no compunction in placing Article 20.2 alongside Article 19
(freedom of expression). There is some jurisprudence on the juxtaposition,
for example Faurisson v France (a holocaust denial case),
before the UN Human Rights Committee.

104. All this is now compounded by the internet.
The High Court of Australia has allowed civil litigation to be
brought for defamation in the country, or jurisdiction, where
the offending material has been down-loaded. It is a matter for
speculation whether other judicial systems, including the UK,
will follow. It cannot be assumed that in the field of criminal
law such a transition can be easily achieved. The extent of criminal
jurisdiction for potential offences committed outside the UK but
having an impact here is continually developing, but in the end
there must be a defendant who can be charged and tried within
the UKor who can be extradited for the purpose. The Home
Office position is that although the 1986 Act was not written
with e-mails and the Internet in mind, "it does cover [it]
quite usefully, because it refers to text and signs and images
The principle that the Government follows is that what
is illegal off-line should be illegal on-line provided it falls
within the United Kingdom's jurisdiction"[113].

105. Since purveyors of religiously offensive
material are very well advised, consideration should be given
to the likely defence in a case concerning a website belonging
to an extreme political party. On the issue of intent, the organisers
would doubtless defend themselves on the basis that they did not
intendor possibly expectpeople to be activated to
hatred by these messages because the website was only intended
to explain the stance of a political party. Even if the charge
is framed on the likelihood of racial hatred being incited, a
number of lines of defence can be imagined.

106. Our terms of reference do not enjoin us
to examine in any detail the civil jurisdiction, but a number
of witnesses emphasised that our deliberations should not overlook
the background of discrimination against members of, currently,
the Muslim community. They said, indeed, that measures to prevent
such discrimination and remedies where it occurs might have much
more effect than the criminal law. It is only necessary to draw
attention to the EU Directive on Discrimination in Employment
(2000/78/EC), which includes within its scope discrimination based
on religious belief or non-religious persuasion. Draft Employment
Equality (Religion or Belief) Regulations are at the consultation
stage, although it must be recognised that they will not cover
the whole sphere of grievances.

107. Of immediate relevance to the Committee's
work is the draft Council Framework Decision on Racism and Xenophobia,
currently being debated in the Justice and Home Affairs Council,
which will call for criminal legislation. It has been under discussion
since 1996, but the current situation (at the end of March 2003)
is that the draft requires, in Article 1, that public incitement
to discrimination, violence or hatred shall be punishable when
directed against groups or individuals "defined by reference
to race, colour, religion, descent or national or ethnic origin".
A draft Preambular paragraph states that "religion broadly
refers to persons defined by reference to their religious convictions
or beliefs". Draft Article 8 permits Member States to exclude
from criminal liability conduct which is directed against a group
or individuals defined by reference to religion where this is
not a pretext for incitement to racial hatred. In earlier versions
of the draft, incitement to religious hatred would only have been
criminalised when it was being used as a pretext for incitement
to race hatred. It may be that witnesses who support a law criminalising
incitement only to religious hatred are correct in seeing the
present deliberations as a partial solution[114]:
they hope for wider legislation on equality as well as this small
extension of the criminal law.

108. The countervailing argument against the
creation of a new offence of incitement to religious hatred draws
upon the current proposals to address religious intolerance and
discrimination through the civil law and the requirement, which
will no doubt soon be placed upon Government, to implement the
Council Framework Decision. In so doing, a Decision leading to
such a requirement must be presumed to have taken into account
the potential conflict between a law to turn incitement to religious
and other brands of hatred into criminal offences, as against
the right, under the European Convention's Article 10, to freedom
of expression. There is, in English law, only a small gap between
incitement, in various forms, which encourage the commission of
an existing criminal offence and are thus themselves an offence,
and the publication of material which may be thought by some to
constitute incitement to religious hatred but by others to be
the sort of fair comment which the Strasbourg Court said in the
Otto-Preminger Institut case (see para 48 above) must be
tolerated and accepted. The police witnesses said that "The
Attorney-General would need to consider what guidelines there
should be around the issue of fair comment, which would be more
problematic than it is under racial discrimination"[115].
One Evangelical Alliance witness agreed that there is "a
world of difference" between incitement to racial and to
religious hatred[116].
This issue has not been resolved: when asked about his input into
a decision whether or not to prosecute, because of Article 10.2
considerations, the Attorney-General said that his decision does
not pre-empt anything; the court receives the case and it is tried[117].

109. But if the Attorney-General does not give
his consentand it must be accepted that he acts in quasi-judicial
roleno court will ever consider the matter at all. A refusal
to consent to a prosecution is not, in the present state of the
law, subject to judicial review[118].
The Attorney-General is responsible to Parliament alone. So his
refusal of a fiat for a prosecution under legislation making criminal
any incitement to religious hatred could have the effect that
a "fair comment" argument would never reach any court
at all. This does not, of course, imply any motive other than
total propriety. The Attorney-General has said that, in the event
of his withholding his consent to a prosecution, he would inform
the CPS of the reasons and, if asked by others, such as Members
of Parliament, he would be as helpful as possible. The fact remains
that there could be cases where complainants about incitement
to religious hatred would never be able to have their complaint
tested, as against some extremist publication, in the context
of what is or is not permissible as a matter of freedom of expression.
This would not arise if there were not built in a requirement
for the Attorney-General's consent; but, then, there can be little
dispute that consent at a suitable level in the prosecuting authorities
is essential in order to exclude the vexatious cases.

110. The crux of the matter is that it is hard
to see how the extent of freedom of expression can be comprehensively
justiciable, so that Article 10 rights and their restriction under
Article 10.2 may be tested in the English courts, so long as the
Attorney-General's consent is a prerequisite to any prosecution.
Nor is it easy to see how this block might be overridden by an
appeal to Strasbourg, except through the argument that domestic
law fails to provide any remedy at all. This is because the Human
Rights Act 1998 did not include, within UK jurisdictions, the
Article 13 requirement to provide domestic remedies for breaches
of the Convention.

111. In terms of Article 10, this is not a theoretical
point. There are religious cults whose doctrines seek to influence
new adherents to isolate themselves from their families, or to
extract from them all their possessions, or both. Such a religion
is all too likely to attract trenchant and hostile criticism,
and this would evidently be permissible within Article 10.1 of
the European Convention. What, then, is the difference between
a publication condemning such practices and the propaganda of
an extremist political party directed, generally, at the tenets
and adherents of one of the major religions? It is hard to see
how anything beyond propaganda can be at stake: if the publication
incited its readers to violence, harassment or public disorder
the authors or publishers would be liable to criminal proceedings
as the law now stands. Under a new law about incitement to religious
hatred, it is inevitable that the defence would seek to persuade
the jury that the words in the publication, poster etc. were not
sufficiently serious to override the right to freedom of expression.

112. One possible formulation, complete with
safeguards, was put forward in a supplementary written submission
by the British Humanist Association[119]:

"1. It is an offence for a person publicly to
use words or behaviour or to display any material:-

(a) by which he incites or intends to incite
hatred against persons based on their membership (or presumed
membership) of a religious group, or

(b) in such a manner and circumstances that a
reasonable person would think such hatred is likely to be stirred
up.

For the purpose of section 1:-

a) "religious group" means a group
defined by reference to religion or belief or the absence of any,
or any particular, religion or belief

b) "presumed" means presumed by the
offender

c) "membership" in relation to a religious
group includes association with members of that group."

113. They comment that "in section 1, there
are three factors: intention, likelihood, and achievement. Logically,
each can appear alone, with either or with both the others, making
seven possible combinations. Our draft covers all combinations
except that where hatred results without either intention or likelihood,
which would not seem culpable. This structure could, we believe,
be applied to the other activities in which incitement of religious
hatred could occur, e.g., publishing or distributing written material,
possession of written material, broadcasting etc., as specified
in the current Public Order Act and the present [Religious Offences]
Bill". The British Humanist Association's wording follows
s.18 of the Public Order Act except in four respects: it does
not apply in any private place, whereas s.18 does but for dwellings;
it introduces the concept of presumption by the offender of the
target groups religious belief; it interposes a 'reasonable person'
between the words themselves and the jury; it also introduces
the concept of membership of the group, and it challenges the
definition in s.39(5) of the Anti-Terrorism etc Act 2001, of "a
group of persons defined by reference to religious belief or lack
of religious belief" to include persons associated with the
group. For these reasons we find difficulties with the proposed
draft.

114. Although strictly outside our terms of reference,
the extension of incitement to hatred from racial to religious
groups invited further consideration of other target groups, such
as those covered by the Employment Directive. If discrimination
is practised against any of the groups covered by that Directive,
then in extreme cases the same groups may be targets for incitement
to hatred, and society should logically prohibit incitement to
hatred of all readily identifiable groups within the population
which are manifestly suffering from discrimination. The website
Media Hatewatch has recently been collecting and publishing items
which might be said to amount to vilification of asylum-seekers.
As stated by the DPP[120],
the CPS, in conjunction with the police, is paying particular
attention to hate crimes against the gay community. There is nothing
to prevent the UK, or any jurisdiction within the UK, from building
on the proposed Council Framework Decision to make it more comprehensive,
or even to add other categories of target groups by secondary
legislation.

115. Since it appears that the device of requiring
the Attorney-General's consent will have the effect that no higher
court will have the opportunity of deciding whether he has, in
refusing consent, drawn the dividing line correctly to reflect
Article 10.2, the issue will only emerge if he does consent to
prosecution. If he does not, he will not necessarily give his
reasons. If such a case is allowed to proceed, it is probable
that the defence will argue the point and it will be left as an
issue for the jury to decide. The limits would therefore be decided
on a case-by-case basis, without any reasoning being available
from the lower courts, though a conviction could lead to an appeal
at which Article 10 considerations would be dealt with in the
judgement. In much the same way as has been discussed in connection
with blasphemy, a person proposing to publish, in any medium,
severe criticism of the adherents ofa religion will only
know, ex post facto, whether he has committed an offence.
The problem, under Article 10.2 read with Article 7, about lawfulness
of the restriction will be the same, but probably much more immediate.
Indeed, it already arises in cases of incitement to racial hatred.

116. To summarise, the introduction of a new
offence of incitement to religious hatred could be part of a much
more comprehensive approach, the opportunity for which should
occur when consideration is given to implementing the proposed
Council Framework Decision. There is nothing to prevent the UK
from going further than the list of hate targets in that text.
All pure incitement offences would deal with only a limited area
of conduct, bounded by the ordinary law against incitement to
commit particular offences on one side, and Article 10.2 on the
other.